RULE 404. CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT, EXCEPTIONS: OTHER CRIMES

(a) Character evidence generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1) Character of accused. Except as otherwise provided by statuteIn a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution;

(2) Character of victim. EvidenceIn a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;

(3) Character of witness. Evidence of the character of a witness, as provided in Rules 607, 608, and 609.

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. However, it may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

The general rule that character evidence may not be introduced to show that a person acted in conformity to character is compatible with present North Dakota case law. See Thornburg v. Perleberg, 158 N.W.2d 188 (N.D. 1968). Character evidence is not admissible when its purpose would be to prove circumstantially how a person acted on a particular occasion. Whenever the character of a person is in issue, as in a defamation case, this exclusion does not apply. McCormick on Evidence, § § 186, 187.

Subdivision (a)(1) allows the accused to offer circumstantial evidence of character. Traditionally, this has been allowed, for the objection to character evidence in general is not that it has no relevancy but that its probative value, when weighed against possible prejudice, does not warrant admission. If the accused offers such evidence, the issue of prejudice is no longer a factor.

Subdivision (a)(2) allows character evidence of the victim of a crime to be introduced by an accused and evidence of peacefulness of a homicide victim by the prosecution to rebut evidence that the victim was the aggressor. A significant exception has been enacted to this general rule by the North Dakota Legislature with its adoption of N.D.C.C. § 12.1-20-14, and N.D.C.C. § 12.1-20-15, relating to cases involving gross sexual imposition.

Subdivision (a)(3) provides that, in dealing with impeachment of a witness, Rules 607, 608, and 609 state the applicable rules. The present rule retains its force, and should be consulted whenever the witness is also a party whose actions are sought to be proved.

Subdivision (b) restates the general rule, but continues to provide that character evidence offered for other purposes, e.g., motive, intent, or identity, is admissible. But the mere labeling of such evidence does not automatically bring admission. The North Dakota Supreme Court stated that "the mere invocation of an exception to the (character evidence) rule does not end inquiry, however. It only begins it." State v. Stevens, 238 N.W.2d 251, 257 (N.D. 1975).

In Stevens, the Supreme Court set forth criteria that should be considered whenever section (b) of this rule is invoked:

First, not all the purposes listed are of equal "weight." Citing McCormick on Evidence, § 190, p. 452, the court stated that "a much stricter showing of relevancy is required to prove identity or the doing of the criminal act by the accused, than when it is offered to prove knowledge, intent, or state of mind." Stevens, supra, at 257.

Second, the court required that such evidence be "clear and convincing."

Third, the court stated that "before such evidence may be considered at all, there must be proof of commission of the crime charged." Although there is some language in the opinion which would suggest otherwise, this requirement means that, before the character evidence may be used for any purpose, independent evidence that the charged crime was committed must be present.

Finally, as a general proposition, the court stated that the question is "one of balancing the aims of full disclosure and fairness to the defendant where they are in conflict * * * . The problem is not one of pigeonholing, but of balancing, of discretion rather than following a rule." Stevens, supra, at 257, 258.

Rule 404 was amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.

Subdivision (b) was amended, effective March 1, 1994, to follow the 1991 federal amendment, by adding a pretrial notice requirement in criminal cases. However, unlike the federal rule, North Dakota's amended rule does not place the burden of requesting notice upon the accused. Because the notice requirement serves as a condition precedent to admissibility of 404(b) evidence, the offered evidence is inadmissible if the court decides that the notice requirement has not been met. The amendment is not intended to redefine what evidence would otherwise be admissible under Rule 404(b).

Rule 404 was amended, effective __________________, to follow the 2006 amendments to Fed.R.Ev. 404. Under the amendments, evidence of a person's character is not admissible in a civil case to prove that the person acted in conformity with the character trait.